Thursday, November 13, 2014

Details, details

I usually avoid pointing out the odd factual error in news stories. I make mistakes. Everybody makes mistakes. It's a complicated subject, the information available to the public is sparse, and who really needs another pedant on the internet?

- "The story goes back to March, when a Federal Court judge demanded details of just how the Canadian Security Intelligence Service (CSIS) goes about doing NSA-style surveillance. The details of that case just came out this week."

It really goes back to August 2013, when Justice Richard Mosley of the Federal Court demanded an explanation from CSIS and CSE of their use of monitoring assistance by the NSA and other Five Eyes agencies. Or maybe even to 2007, when a ruling by Justice Edmond Blanchard started the whole ball rolling (see below).

What came out on November 4th were the details of the Federal Court of Appeals' ruling on the government's appeal of the legal interpretations laid out by Justice Mosley in his Further Reasons for Order delivered after his 2013 investigation.

- "In 2008, CSIS applied for a warrant to team up with its sister agency, Communications Security Establishment Canada (CSEC) and the NSA, to do surveillance on a Canadian suspect. We don’t know why they asked for the surveillance, what the Canadian was suspected of doing, or who that suspect was—the case refers to him, her, or them as X. That warrant was denied by a Federal Court judge."

It was a 2007 application that was denied by Justice Blanchard. That application covered 10 individuals, nine "Canadian citizens, permanent residents or refugees" and one foreign national. The X(re) application came later, concerned two Canadians, and led to the 2009 ruling by Justice Mosley that authorized for the first time what became known as 30-08 warrants, authorizing CSIS and CSEC to monitor Canadians abroad from within Canada. According to Mosley, CSIS suspected that the two individuals would engage in "threat-related activities... while traveling outside of Canada".

- "He found that CSIS had no right to be keeping tabs on Canadians abroad, in violation of international law, as its mandate was strictly domestic."

He, i.e., Blanchard, found that, in the absence of explicit legislative sanction, he had no power to authorize CSIS to undertake activities that might violate the laws of the countries where they took place, as this would violate international law. He did not say that CSIS had no right to monitor Canadians abroad. (Blanchard would have had no objection if, for example, the monitoring took place in a country that had legally authorized CSIS to conduct the activities. Nor would he have objected to the use of forms of monitoring that are not illegal in the country in question.)

- "A few months later, they tried again, with a different judge—their warrant made no mention of overseas surveillance, stating that they planned to do all the surveillance from within Canada."

It was almost a year and a half later. And the agencies were explicit about the fact that CSIS and CSEC would monitor the Canadians while they were abroad; the problematic part was the claim that all the monitoring would be done from within Canada.

- "Since it looked like just about every other warrant brought forward by CSIS, Justice Richard Mosley—a well respected jurist—signed it."

It did not look like just about every other warrant. It was specifically designed to permit the monitoring of its Canadian targets while they were abroad, not just in Canada, and to do so in a way that was legally distinguishable from the failed bid put before Blanchard in 2007. The fact that in authorizing it he was stepping around the Blanchard decision was clearly understood and acknowledged by Mosley.

- "Four long years later, Mosley was flipping through an annual report from the nominal overseer of CSEC. One sentence in it caught Mosley’s eye, where the commissioner recommends that CSEC: 'provide the Federal Court with explicit evidence in…warrant applications that CSEC’s assistance to CSIS might include the interception of private communications of the Canadian subjects…by CSEC’s second party partners in the United States, United Kingdom, Australia and New Zealand, and also involve the sharing of identity information of those Canadians with the four partners.'"

If only CSE commissioners were so forthright and clear in their annual reports!

In the actual sentence the commissioner recommended that "CSEC advise CSIS to provide the Federal Court of Canada with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS."

- "Evidently, the government wasn’t tremendously confident in [its appeal of Mosley's Further Reasons for Order], hence why they introduced legislation specifically legalizing CSIS’ cooperation with the spooks at Fort Meade, Bill C-44. They were probably right to be nervous. Last week’s Federal Court of Appeal decision just prolonged the tongue-lashing that the spy agencies received from Mosley."

Bill C-44 would make it explicit that CSIS can operate abroad, even when in violation of foreign laws ("Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada"), thus addressing the problem raised originally by Justice Blanchard. Cooperation with foreign spy agencies in monitoring Canadians would also be facilitated by this change (although there could still be Charter questions), but it is not specifically addressed in the legislation.

As for the timing, the government tabled its legislation in October, long after the appeal court's July 31st ruling. (It was only the public that remained in the dark about the ruling until November 4th.)

- "The Court of Appeal included a section from an internal CSEC memo on '2nd Party Assets' in its decision, explaining: 'these are CSEC’s SIGNIT [Signals Intelligence] counterparts within the 5-Eyes community...'"

It was a CSIS memo.

And, yes, I am literally NIT-picking here, but how do people get SIGNIT out of Signals Intelligence? It's a surprisingly common mistake. It's SIGnals INTelligence, not SIGnals NITs. I just don't get it. The Court of Appeal, and I assume the original memo, wrote SIGINT.

- "Canadian courts can now authorize the NSA to spy on perceived threats to Canada..."

Canadian courts don't and won't have any say over NSA's authority to do anything (unless perhaps they occasionally authorize certain activities in Canada), and there is not and has never been any impediment to Canadian agencies seeking and receiving the cooperation of NSA or other Five Eyes agencies in spying on "perceived threats to Canada"—except with respect to requests to monitor Canadians in the absence of a warrant authorizing such monitoring.

That said, it does seem highly likely, assuming that Bill C-44 is passed, that future warrants authorizing the monitoring of Canadians abroad will include authorization to draw on the resources of Five Eyes allies and, for that matter, potentially, other countries' intelligence agencies.

In all such cases, however, the subjects of the surveillance will be specific individuals whose surveillance has been authorized by a Canadian judge, so this doesn't really get to the question of the degree to which the Five Eyes agencies may monitor each others' citizens and then pass information on to the relevent government without having received specific targeting requests.

It has already been admitted that this kind of thing occurs, but the claim is that it only happens "incidentally".

Much of what these agencies say to the public is deliberately misleading, so believe it or don't. But even if their claim is indeed the whole truth of the matter an awful lot of monitoring could, at least in theory, fall under the rubric of "incidental".

[Update 14 November 2014: See here for an example of extensive "incidental" collection of Canadian communications by NSA.]

The topic is one that deserves continued, close attention.

But it doesn't hang on the passage or non-passage of Bill C-44.

I'm not trying to attack Justin Ling here. He has done good reporting on CSE, and what's more, he just retweeted one of my tweets, so he's in my good books.

But what's the point of having a topic-specific blog if you can't sweat a few of the details from time to time?

(Here's hoping I managed to get them all right myself. No guarantees.)

Update 26 January 2015:

@veritas_truth_ FWIW, most of his suggestions were good, but there were very few factual errors. Like, really minor stuff.

3 Comments:

So you're right to call me out on a few of these things. By way of excuse, here's two salient points:

1. I was full steam ahead to get this thing to print ASAP after the decision was released2. I was writing for an American audience.

As such, I definitely relied on a few lazy journalistic shorthands ("months later" as opposed to precise measures of time.)

I also side-stepped the whole Blanchard backstory. Thought I risked getting too far into the background and losing the audience.

One thing that I'm curious about is the warrant that Mosley signed -- I'd have to closely re-read his and the CoA decisions, but my understanding is that it *was* just like every warrant. The implications may have been quite different, but I understood it to be a domestic surveillance warrant, but phrased cleverly to not replicate their mistakes form the Blanchard warrant. Maybe this is semantical.

Finally: SIGNIT sounds so much more catchy. SIGINT sounds so wrong. (My bad.)

To the broader point: my understanding in covering this is that C-44 *would* make a significant difference. Judging by the CSEC Commissioner's last report, focus on that 'incidental' collection is a preoccupation of both his office, and CSEC itself. While it's obviously being done, and being used, they appear (and I say, 'appear,' because we can only really guess at the reality, based on the shadows) that they're nervous about that data collection. Evidently, because the commissioner seems neurotic about it. (See: http://motherboard.vice.com/en_ca/read/canadas-spy-agency-recorded-citizens-calls-internal-audit-reveals)

As such, formalized and endorsed legal power for CSEC, here, probably means quite a bit. What we've seen with bills like C-13 and S-4 is the government moving to formalize and legalize gray areas to give peace of mind to law enforcement/security.

Lemme look over this, and see if there's any edits to the original story I can make. (At this point, it having been online for a few weeks already, it might be a bit late.)

If we didn't have the wonks nit-picking, we'd never get better.

Anyway, I fleshed out a bit more of the detail of the backstory, here: http://www.nationalmagazine.ca/Articles/November-2014-Web/New-laws-for-Canada-s-spies.aspx

On the warrant question, CSIS already had a warrant to monitor the two Canadians inside Canada. The warrant Mosley signed in January 2009 was for the purpose of extending that coverage to their impending travel outside Canada. See paragraphs 36 and 37 here: https://leaksource.files.wordpress.com/2013/12/mosley-csis.pdf